US v. Dago, Crim. A. No. 92-CR-245.

• Citation: 813 F. Supp. 736
• Decision Date: 24 December 1992
• Docket Number: Crim. A. No. 92-CR-245.
• Court: U.S. District Court — District of Colorado
• Parties: UNITED STATES of America, Plaintiff, v. George Erman DAGO, Gino Alioto, Gerald Kenneth Jorgensen, Ira Dean Gray, et al., Defendants.

813 F. Supp. 736

UNITED STATES of America, Plaintiff, v. George Erman DAGO, Gino Alioto, Gerald Kenneth Jorgensen, Ira Dean Gray, et al., Defendants.

Crim. A. No. 92-CR-245.

United States District Court, D. Colorado.

December 24, 1992.

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Michael J. Norton, U.S. Atty., David M. Gaouette, Asst. U.S. Atty., Denver, CO, for U.S.

Arthur S. Nieto, Lakewood, CO, for George Erman Dago, George Battaglia, Paul Vigil, Robert Duran.

Phillip Cherner, Denver, CO, for Karen Sue Battaglia, Suzanne Battaglia.

Gordon D. Sanchez, Denver, CO, for Octavio Ramirez.

Joseph Saint-Veltri, Denver, CO, for Gino Alioto.

Janine Yunker, Asst. Federal Public Defender, Denver, CO, for Richard Lee Molinaro.

Jeffrey Timlin, Denver, CO, for Eric Entrup.

David G. Eisner, Boulder, CO, for Shelli J. Entrup.

Don Lozow, Denver, CO, for Louis Mayfield.

Larry Pozner, Denver, CO, for Ralph Beightol.

Claudia J. Jordan, Denver, CO, for Guillermo Suazo.

David A. Lane, Denver, CO, for Charles Fitzsimmons.

Martha K. Horwitz, Denver, CO, for Rodney Reichel.

Jeralyn E. Merritt, Denver, CO, for Gerald Kenneth Jorgensen.

Saskia A. Jordan, Denver, CO, for Linda Knox.

Neil MacFarlane, Westminster, CO, for Ira Dean Gray.

Richard N. Stuckey, Denver, CO, for Richard Waterman.

Richard D. Irvin, Boulder, CO, for Dan Pennetta.

Richard J. Banta, Denver, CO, for Linda Smith.

John C. Hugger, Evergreen, CO, for Robert Lee.

ORDER REGARDING PRETRIAL, TRIAL AND POST TRIAL MOTIONS

SHERMAN G. FINESILVER, Chief Judge.

This is a criminal case which was tried to a jury commencing on November 9, 1992.¹ The matter comes before the Court on Defendant Dago's Motion for a New Trial and Motion for Bond Pending Sentencing and Appeal and Defendant Alioto's Motion for Judgment of Acquittal and Motion for New Trial and addendum.² The Government has responded. For the reasons stated below, the motions are denied. We also expand on certain pretrial and trial motions of Defendants which were previously ruled on by the Court.

I. BACKGROUND

On November 25, 1992, the jury in this case returned its verdicts. Defendant Dago was found guilty on all counts: conspiracies to possess with intent to distribute marijuana and cocaine, distribution of marijuana and cocaine, possession of marijuana and cocaine with the intent to distribute, conducting a financial transaction to promote drug trafficking, using communications facilities to promote drug trafficking, distributing more than 500 grams of cocaine, conspiracy to conduct a financial transaction to promote drug trafficking, and engaging in a continuing criminal enterprise. Defendant Alioto was found guilty of conspiracy to possess with intent to distribute marijuana and possession with intent to distribute marijuana. However, Defendant Alioto was found not guilty of conspiracy to possess with intent to distribute cocaine and possession with intent to distribute cocaine. The jury returned verdicts of not guilty for Defendant Jorgensen. Defendant Gray was found guilty of simple possession of marijuana and not guilty of the more serious offenses of possession of marijuana with intent to distribute and use of a communications facility in furtherance of a felony drug offense.

II. PRETRIAL MOTIONS

We expand on the Court's Order entered October 8, 1992, and other orders, pretrial rulings and rulings made during trial.

A. Motions for Severance

Generally, individuals indicted together should be tried together. United States v. Jenkins, 904 F.2d 549, 557 (10th Cir.1990) (citing United States v. Rinke, 778 F.2d 581, 590 (10th Cir.1985)); United States v. Barker, 623 F.Supp. 823, 834 (D.Colo.1985) (Finesilver, C.J.). See Fed. R.Crim.P. 8(b) (West 1986). A defendant requesting a separate trial must establish that substantial prejudice would result from a joint trial. United States v. Levine, 983 F.2d 165, 166-67 (10th Cir.1992) (citing United States v. Hollis, 971 F.2d 1441, 1456 (10th Cir.1992)). See Fed.R.Crim.P. 14. In determining whether severance is appropriate, a court must balance prejudice to the defendant which would be caused by a joint trial against judicial expense and inconvenience which would be occasioned by separate trials. United States v. Lane, 883 F.2d 1484, 1498 (10th Cir.1989); United States v. Levine, 750 F.Supp. 1433, 1442-43 (D.Colo.1990) A trial court has substantial discretion in addressing motions for severance. United States v. Beathune, 527 F.2d 696, 698 (10th Cir.1975), cert. denied 425 U.S. 996, 96 S.Ct. 2211, 48 L.Ed.2d 821 (1976). The Court may consider alternatives other than separate trials to avoid potential prejudice. Lane, 883 F.2d at 1484.

In the case at bar, Defendants argued that severance was appropriate because of the substantial evidence involved in this case and the potential of juror confusion over what evidence applied to which Defendant. The Court denied these motions prior to and during trial. According to the standards enunciated above, it was inappropriate to grant severance in this case. At the request of Defendants, the jury was given limiting instructions throughout trial. Furthermore, in the final charge, the jury was instructed as follows:

As you know, there are four defendants on trial here: George Erman Dago, Gino Alioto, Gerald Kenneth Jorgensen, and Ira Dean Gray. Each Defendant is entitled to have his case decided solely on the evidence which applies to him. As the Court has explained to you throughout this trial, some of the evidence in this case is limited under the rules of evidence to one or more of the Defendants, and cannot be considered against the others. It is your duty to give separate, personal consideration to the case against each individual Defendant. When you do so, you should analyze what the evidence in the case shows with respect to that individual, leaving out of consideration entirely any evidence admitted solely against some other defendant or defendants. It is your duty to separately consider the evidence against each defendant on each charge, and to return a separate verdict for or against each one of them. For each Defendant, you must decide whether the government has presented proof beyond a reasonable doubt that a particular Defendant is guilty of a particular charge. Your decision regarding any one Defendant or one charge, whether it is not guilty or guilty, should not influence your decision on any of the other Defendants or charges.

The jury returned verdicts which reflect that they followed this and the Court's other instructions. As noted above, the jury found Defendant Jorgensen not guilty of possession of cocaine with intent to distribute and use of communications facility in furtherance of a felony drug offense. The jury found Defendant Gray, although indicted on charges of possession of marijuana with intent to distribute and use of a communications facility in furtherance of a felony drug offense, only guilty of the lesser included offense of simple possession. Likewise, the jury found Defendant Alioto guilty of conspiracy to distribute marijuana and possession of marijuana with intent to distribute and not guilty of similar charges involving cocaine. The jury found Defendant Dago guilty of all charges on which he was tried. It is apparent that the jury gave separate and independent consideration to the evidence against each Defendant on each count. Therefore, no prejudice arose out of this Court's failure to grant Defendants' motions for severance.

B. Motion for a Townsend Hearing

Defendant Alioto moved for a Townsend hearing because the Government's evidence, he argued, strongly suggested that there were several conspiracies which were indicted as a single conspiracy. See U.S. v. Townsend, 924 F.2d 1385, 1389 (7th Cir. 1991). Defendant noted that because his sentence would be based on the quantity of drugs involved in any conspiracy of which he is convicted, it was important to ascertain which conspiracy he was alleged to be involved in.

The Government and Defendant Alioto agreed that such hearings are not favored. Whether a single conspiracy exists is a question of fact; consequently, "the jury gets first crack at deciding `whether there is one conspiracy or several when the possibility of a variance appears.'" U.S. v. Paiz, 905 F.2d 1014, 1019 (7th Cir.1990) (quoting U.S. v. Percival, 756 F.2d 600, 609 (7th Cir.1985)). See also U.S. v. Ruwe, 790 F.2d 845, 849 (11th Cir.1986). Townsend has not been adopted in this circuit. On the other hand, the Tenth Circuit has upheld a district court's refusal to issue a multiple conspiracy instruction where, as in the case at bar, the district court instructed the jury that the Government had the burden of proving the conspiracy as alleged, and that the evidence should be considered separately as to each individual defendant. U.S. v. Evans, 970 F.2d 663, 675 (10th Cir.1992). Therefore, it was appropriate for the Court to deny Defendant Alioto's motion for a Townsend hearing.

C. Motion for James Hearing

Before trial, Defendant Alioto filed a Motion for Pretrial Hearing Re: Hearsay Statements ("James hearing"). See United States v. James, 590 F.2d 575 (5th Cir. 1979). Defendant Alioto and other Defendants argued that according to Fed.R.Evid. 801(d)(2)(E) (West Supp.1992), the Court was required to conduct a pretrial hearing to determine which, if any, statements of coconspirators would be admissible at trial. We denied this motion and expand on why such denial was appropriate.

Statements by coconspirators made during the course and in furtherance of the conspiracy are not hearsay and are therefore admissible against a defendant. Fed. R.Evid. 801(d)(2)(E) (West Supp.1992).³ Two basic issues have arisen under this rule. First, what findings must the Court make in order for the statements to be admissible? Second, what procedure must the Court follow in making the required findings (i.e., when must the findings be made)?

1. Required...